WELLNESS PROGRAM AGREEMENT
This Wellness Program Agreement (“Agreement”) is made and entered into effective as of online sign up (“Effective Date”), by and between ACAP Health Consulting, LLC (“Vendor”), and Customer (“Customer”). Vendor and Customer may be referred to collectively as “Parties” or individually as a “Party” to this Agreement.
WHEREAS, Vendor has created, owns or has secured the right to use, distribute and sublicense the Joyages brain health intervention program (the “Program”), including but not limited to (i) certain trademarks, service marks, logos, trade dress and other distinctive brand features of Joyages that are part of and used in connection with the Program; (ii) certain video presentations, manuals, website and app content, emails and other materials developed by Vendor for the Program (the “Curriculum”); and (iii) a mobile app established and maintained by Vendor that permits Participants to access, display, perform and use the Program’s app-based services (the “Program App”) (collectively, the “Joyages Information”);
WHEREAS, Vendor also provides reports and other related services (collectively, the “Services”) to employers that offer the Program to their workforce members, so that employers can track and evaluate the Program’s impact on employee health and employer health care costs;
WHEREAS, Customer wishes to provide all employees of Customer (“Eligible Employees”) and their eligible partners or spouses with the Program to encourage a healthy lifestyle amongst said Eligible Employees and their eligible partners or spouses who enroll in the Program (“Participants”); and
WHEREAS, subject to the conditions set forth in this Agreement, Vendor is willing to provide Services, a copy of any physical Program materials, and the Program to Participants in exchange for Customer’s payment to Vendor of agreed fees;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Right of Customer to Use Trademarks and Joyages Information.
a. Subject to Customer’s strict compliance with all terms, conditions, and restrictions of this Agreement, Vendor hereby grants to Customer:
i. a non-exclusive, non-transferable right to use the Joyages Information to promote, advertise, market, identify and describe the Program to Eligible Employees and their eligible partners or spouses; and
ii. a non-exclusive, non-transferable right to grant Participants the right to access and use the Program for the intended purpose of the Program.
b. All patents, trademarks, trade dress, right of publicity, copyrights, design rights, trade secrets and other intellectual property rights in the Joyages Information, the Services and Vendor’s Confidential Information (as defined herein) are and shall remain the exclusive property of Vendor. Nothing herein shall be construed as granting any right, title or interest in or to the Joyages Information or the Services, other than those rights expressly granted in this Section 1.
c. Except as expressly provided by the terms of this Agreement, Customer shall not use, reproduce, modify, distribute, display, perform or create derivative works of the Joyages Information without the express, written consent of Vendor.
2. No Trademark License. Except for Customer’s use of the Joyages Information as expressly authorized in this Agreement or as otherwise expressly authorized in writing by Vendor, Customer has no right or license to use or license the use of any of Vendor’s names, trademarks, service marks, logos, emblems and other indicia of origin for any purpose whatsoever. Customer agrees to permit Vendor to reference Customer name and logo upon Customer’s prior written consent and according to Customer marketing guidelines and for legitimate business purposes including, but not limited to, Joyages website, app, and collateral materials. Customer agrees to consider reasonable requests for (a) serving as a reference, (b) collaborating on press releases regarding services, and (c) collaborating on case studies or other marketing collateral showcasing the outcomes of agreed upon services. To be clear, except as may be required by law, neither party may issue any press release or make any announcement in relation to this Agreement without the prior written consent of the other party.
3. Presentation of the Program and Scope of Services.
a. Vendor is solely responsible for presenting and implementing the Program in such manner as it deems appropriate, subject to mutually accepted guidelines, to ensure satisfactory delivery. In addition to the Curriculum, and except as otherwise expressly agreed herein, Vendor will present the Program by mobile application accessed by Participants directly via their smartphone or other technologies.
b. Vendor represents and warrants to Customer that (a) Vendor has the necessary experience and resources to perform the Services contemplated by this Agreement, (b) Vendor has all licenses and/or other authorizations necessary for it to legally perform its obligations under this Agreement, and (c) Vendor will provide all Services under this Agreement in a professional and workmanlike manner using generally accepted industry standards and practices.
4. Program Fees.
a. Customer shall pay to Vendor an amount equal to $300 for the first twelve months (the “Program Fee”).
b. The Program Fee will be due and payable within thirty (30) days of the date of receipt of Customer of Vendor’s invoice. Customer shall pay a late fee equal to the greater of two percent (2%) of any such overdue amount, or the maximum amount permitted by applicable law. Any such late payment will not constitute a material default or breach of this Agreement, unless such late payment continues for a period of time longer than thirty (30) days after Customer’s receipt of written notice of such delinquency from Vendor.
c. Customer shall be separately responsible for any fees and/or reimbursement of costs incurred by Vendor on Customer’s behalf in connection with the Program which are pre-approved by the customer, if applicable (“Additional Fees”). By way of example and not limitation, Additional Fees may include travel expenses and/or other out-of-pocket costs mutually agreed by the Parties. Any Additional Fees shall be invoiced by Vendor as they are incurred and shall be due and payable by Customer within thirty (30) days of the date of Vendor’s invoice.
d. Customer represents and warrants to Vendor that it shall receive no revenue or other material consideration of any kind in connection with providing the Program to Participants, and shall not charge its employees or any third party any fees for participating in the Program. Penalties charged to Participants, or recoupment of expenses by the employer from Participants, however, will not be considered revenue or material consideration under this paragraph. Customer’s breach of this representation and warranty will constitute a material breach of this Agreement.
5. Term and Termination.
a. Term. The term of this Agreement shall commence on the Effective Date and end on date customer terminates (“Initial Term”). Unless terminated as provided herein, this Agreement may be renewed for additional month (each, a “Renewal Term”).
b. Termination for Convenience. Either Party may terminate this Agreement or any extension thereof and the licenses granted herein without liability except as provided herein, after thirty (30) days advance written notice to the other Party.
c. Termination for Change of Ownership. Vendor may elect to terminate this Agreement immediately if the direct or indirect ownership or control of Customer that exists on the date of this Agreement changes in any material manner.
d. Termination for Insolvency. Either Party may elect to terminate this Agreement immediately if the other Party ceases to conduct business in the normal course, files a petition in bankruptcy, becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for substantially all of its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors’ rights, or institutes any proceedings for the liquidation or winding up of the business or for the termination of its corporate charter.
e. Termination for Default. Either Party may terminate this Agreement upon notice to the other Party if the other Party defaults in the performance of or compliance with any material provision of this Agreement and such default continues without cure for a period of thirty (30) days after notice.
f. Effect of Termination. Expiration or termination of this Agreement or any license by either Party shall not affect, the accrued rights of the Parties arising in any way out of this Agreement as of the date of termination or limit either Party from pursing any other remedies available to it. The Parties’ rights and obligations under Sections 6, 8, 9, 10, 11, 15, and 16 shall survive termination of this Agreement.
g. Rights and Obligations Upon Termination. Upon termination or expiration of this Agreement, Customer (i) shall have no further right or license to the Joyages Information; (ii) must promptly cease any and all use, distribution, display, presentation, promotion, advertisement, marketing, identification, description and sublicensing of such Joyages Information; and (iii) must promptly confirm destruction or return all Joyages Information to Vendor at Customer’s expense.
h. Treatment of Incomplete Participant Enrollments Upon Termination. Notwithstanding anything herein to the contrary, upon termination or expiration of this Agreement for any reason, the Parties agree that Vendor shall continue to make the Program available to Participants receiving the Program prior to the termination date of the Agreement. Any such post-termination delivery of the Program to such Participants shall be in accordance with the terms of this Agreement, and amounts due and payable hereunder by Customer as relate to such Participants shall be paid in accordance with the terms hereof. The provisions of this Agreement shall continue in effect after the effective date of termination only with respect to such Participants’ enrollments and participation in the Program and only for the duration of such Participants’ enrollments.
6. Confidential Information. The Parties acknowledge that in connection with this Agreement either Party may provide, and the other Party may acquire and make use of, certain Confidential Information of the disclosing Party.
a. As used herein, “Confidential Information” shall mean confidential or proprietary data or information of either Party and its affiliates that is disclosed in oral, written, graphic, machine recognizable, sample or any other form, by one Party to the other Party and which is clearly designated or marked as confidential or proprietary or which is disclosed under such circumstances as the receiving Party should reasonably understand that the information is intended to be treated as confidential. Confidential Information includes, but is not limited to, trade secrets, patents, customer and supplier lists, product designs and pricing information, processes, formulas, business plans, consumer information, product licensing plans, production plans and protocols, systems architecture, technology, data, and methods. Confidential Information includes any information that may be derived from or developed as a result of access to all notes, reports, evaluative materials, analyses or studies regarding or relating to the Confidential Information. Notwithstanding anything to the contrary herein, the receiving Party shall have no obligation to preserve the confidentiality of any information that (i) is or becomes publicly available, by other than unauthorized disclosure by the receiving Party; (ii) is distributed to third parties by the disclosing Party without restriction; (iii) is received rightfully and without confidential limitation by the receiving Party from a third party; or (iv) is disclosed to a governmental authority lawfully demanding Confidential Information, provided that the disclosing Party promptly provides prior written notice to the other Party to the extent not prohibited by law and confidentiality is otherwise maintained by the Parties after such disclosure.
b. The receiving Party shall not use such Confidential Information except in connection with the performance of Services pursuant to this Agreement, or divulge the Confidential Information to any third party, unless the disclosing Party consents in writing to such use or divulgence or such disclosure is required by law. In the event either Party receives a request or demand from a third party for the disclosure of Confidential Information, the Party receiving such request or demand shall promptly (within two (2) business days after receipt of such request or demand) provide written notice to the other Party of such request or demand, including a copy of any written document of such request or demand. Upon expiration or termination of this Agreement, neither Party shall take or retain, without prior written authorization, any Confidential Information of the other Party or copies thereof in any form or medium of any kind. Notwithstanding the foregoing, the receiving Party may retain archival copies of the Confidential Information as is required to comply with applicable law, regulation, professional standard or corporate retention policy or in the event of any dispute between the parties; provided that, any such retained Confidential Information will remain subject to the terms and conditions of this Agreement notwithstanding its termination unless and until such copies are returned or destroyed in accordance with the applicable law, regulation, standard, policy or otherwise.
7. No Provision of Medical Care or Advice. Customer understands and agrees that Vendor’s presentation of the Program and Curriculum is not the provision of medical care or advice to Customer, Customer’s officers, directors, employees or Participants of the Program. The Program and the Curriculum are informational in scope and are not a substitute for the sound independent medical judgment of a physician or any other health care provider. Customer, Customer’s officers, directors, employees or Participants of the Program and recipients of the Curriculum are instructed to consult with a physician or health care provider if Customer, or any of the other individuals identified in this section, have any questions or concerns regarding a medical condition.
8. Privacy Protection. The Parties acknowledge that, in connection with providing the Services incident to the Program, Vendor may receive and analyze health information about Participants that may constitute “protected health information” or “PHI,” as those terms are defined in HIPAA. Participants may submit PHI directly to Vendor, in which event Vendor shall obtain written, HIPAA-compliant authorizations from Program Participants (“Authorizations”). Vendor covenants and agrees that: (i) it will use the PHI solely in connection with its delivery of the Services and in a manner that is consistent with the Authorizations; (ii) it will not disclose or otherwise provide access to the PHI to anyone other than its employees, agents, contractors or affiliates who need to access or use it to deliver the Services, each of whom will be bound by these restrictions and conditions; and (iii) it will take reasonable measures to prevent unauthorized access to the PHI by establishing and enforcing administrative, physical and technical safeguards.
9. Indemnification for Third-Party Claims.
a. Vendor will indemnify, defend and hold harmless Customer and its officers, directors, fiduciaries, employees, agents, successors and assigns from any direct loss, damage or cost (including reasonable attorneys’ fees) arising out of any third-party allegations, claims or lawsuits alleging that the Program infringes any copyright, trademark, patent, or incorporates any misappropriated trade secret (a “Claim”).
b. Vendor shall have the right, at its sole discretion, to negotiate a commercially reasonable settlement of any such Claim and may, at its option, (i) obtain the right from third parties to continue using the Program; (ii) replace or modify the Program so that it becomes non-infringing without substantially compromising its capabilities or functionalities; or (iii) terminate this Agreement and refund any pro rata portion of prepaid fees based upon the percentage of the term that has transpired.
c. Vendor will indemnify, defend and hold harmless Customers from any direct loss, damage or cost (including reasonable attorneys’ fees) arising out of any third party claims resulting from the gross negligence or willful misconduct of Vendor or of any third party selected by Vendor to perform any function of Vendor authorized or required hereunder or the breach of this Agreement by Vendor.
d. Customer will indemnify, defend and hold harmless Vendor from any direct loss, damage or cost (including reasonable attorneys’ fees) arising out of any third party claims resulting from breach of this Agreement by Customer or the gross negligence or willful misconduct of Customer or any third party selected by Customer to perform any function of Customer authorized or required hereunder.
10. Limitation of Liability. EXCEPT FOR VIOLATIONS RELATING TO BREACH OF CONFIDENTIALITY AND AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY, NOR ANY SUBSIDIARY, AFFILIATE, AGENT OR EMPLOYEE OF EITHER PARTY, SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT. EXCEPT FOR VIOLATIONS RELATING TO BREACH OF CONFIDENTIALITY, INDEMNITY OBLIGATIONS, AND AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY, NOR ANY SUBSIDIARY, AFFILIATE, AGENT OR EMPLOYEE OF EITHER PARTY, SHALL BE LIABLE TO THE OTHER PARTY FOR AMOUNTS IN EXCESS OF THE TOTAL AMOUNTS PAID HEREUNDER AS OF THE DATE NOTICE IS GIVEN OF A CLAIM.
11. Remedies. No right or remedy conferred on or reserved to Vendor or Customer by this Agreement is exclusive of any other right or remedy. Each Party acknowledges that the other Party may seek preliminary or permanent injunctive relief or declaratory relief if the other Party violates or threatens to violate any provision of this Agreement. The non-prevailing Party will pay all costs and expenses, including reasonable attorneys’ fees incurred by the prevailing Party in any action or proceeding brought to enforce any provision of this Agreement or to enjoin any violation of this Agreement.
12. Roles and Responsibilities. Vendor and Customer acknowledge and agree the roles and responsibilities of both Vendor and Customer are as described in Schedule A attached hereto.
13. Independent Contractors. The Parties shall perform activities under this Agreement only as independent contractors and nothing contained herein shall be construed to be inconsistent with this relationship or status. Under no circumstances shall any personnel of either Party be considered to be an employee or agent of the other Party. Nothing in this Agreement shall be interpreted as granting either Party the right or authority to make commitments of any kind for the other, implied or otherwise, without prior review and written agreement. This Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. Each Party agrees to indemnify and hold the other harmless from any liability arising out of the failure by the other Party to withhold or pay federal and state income taxes, unemployment and social security taxes as may be applicable.
14. No Waiver. Neither the course of conduct between the Parties nor trade practice shall act to modify any provisions of this Agreement. No failure or delay on the part of either Party in the exercise of any right or privilege hereunder, including the right to cancel, shall operate as a waiver thereof, nor shall any single or partial exercise of such right or privilege preclude other or further exercise thereof or of any other right or privilege. No waiver of any term of this Agreement will be valid unless in writing and acknowledged in writing by both Parties.
15. Notices. Any notice or request that is required or permitted under this Agreement shall be sufficient if given in writing or by confirmed e-mail address for the Parties listed below. Notices must be given either (a) in person; (b) by e-mail; (c) sent by courier or other messenger upon confirmation of delivery by such courier or messenger service; or (d) sent by a type of first-class mail, postage prepaid, requiring a signed receipt to confirm delivery. The notice or request shall be addressed to the addressees as follows:
Vendor: ACAP Health Consulting, LLC
12712 Park Central Drive, Suite 100, Dallas, TX 75251
Attn: Brett Newman
16. Governing Law. The validity, performance, and all matters relating to the effect of this Agreement and any amendment hereto shall be governed by the laws of the State of Texas and the federal laws of United States of America, without regard to any conflict of law rules, and both Parties shall submit to the jurisdiction of courts within the State of Texas, with venue in Dallas County (if State Court) or the U.S. District Court for the Northern District of Texas, Dallas Division (if Federal Court).
17. Assignment. Neither Party may assign, transfer or otherwise convey this Agreement or any rights granted under this Agreement except with the written consent of the other Party. Notwithstanding the foregoing, Vendor shall be permitted to assign this Agreement to any party that controls, is controlled by or is under common control with Vendor. Subject to such restrictions, this Agreement shall be binding upon, and inure to the benefit of, the successors in interest and permitted assignees of the Parties.
18. Severability. In the event any one or more of the provisions of this Agreement is held to be unenforceable or invalid under applicable law: (i) such unenforceability or invalidity shall not affect any other provision of this Agreement; (ii) this Agreement shall be construed as if said unenforceable or invalid provision had not been contained herein; and (iii) the Parties shall negotiate in good faith to replace the unenforceable or invalid provision by such as has the effect nearest to that of the provision being replaced.
19. Captions. The captions used in this Agreement are for convenience of reference only and are not to be used in interpreting the obligations of the Parties under this Agreement.
20. Entire Agreement. This Agreement and any Schedules attached hereto, including the Business Associate Addendum dated May 1, 2018, constitute the entire understanding between the Parties concerning the subject matter hereof and supersede all prior discussions, agreements and representations, whether oral or written. This Agreement or any part or provision hereof shall not be deemed waived, amended, or modified by either Party unless such waiver, amendment or modification is in writing and executed by authorized representatives of both Parties.
21. Counterpart Execution. This Agreement may be executed in multiple counterparts, including emailed or telecopied facsimile, each of which when so executed shall be an original, and all of which shall constitute one and the same instrument.
22. Force Majeure. Each party will be excused from performance under the Agreement for any period to the extent that it is prevented from performing pursuant thereto, in whole or in part, as a result of delays caused by acts of God, war, civil disturbance, court order, labor dispute, or other cause beyond its reasonable control, and such non-performance will not be a default under the Agreement or a ground for its termination. Delays or failures that are excused as provided in this Section will result in automatic extensions of dates for performance for a reasonable period of time, not to exceed thirty (30) days. Economic hardship of either Party will not constitute a force majeure under this Agreement. The party whose performance is prevented by force majeure must provide notice of such force majeure to the other party as soon as is reasonably possible and must use diligent efforts to remove such causes of non performance.